to ensure future compliance with the ADEA.
The Court finds that Dr. Kielich is entitled to instatement under section 7(b) of the ADEA, 29 U.S.C. § 626(b). Because the defendant, from time to time, has a need for qualified dental officers, the Court will not order that the present incumbents in the positions in question be removed from their positions to make room for Dr. Kielich. See Lander v. Lujan, 281 U.S. App. D.C. 140, 888 F.2d 153, 156 (D.C.Cir. 1989). Instead, the Court will deem this part of the remedy satisfied if within thirty (30) days of this Order Dr. Kielich is instated to a suitable dental position.
Dr. Kielich is also entitled to an award of back pay since back wages are a standard element of full relief in ADEA suits. See e.g., Anastasio v. Schering Corp., 838 F.2d 701, 708 (3rd Cir. 1988). Defendant asserts that Dr. Kielich failed to mitigate his damages and thus, his back pay award should be adjusted accordingly. The duty to mitigate damages in an employment discrimination case only "requires the claimant to use reasonable diligence in finding suitable employment." Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982). Defendant has the burden of showing that Dr. Kielich failed to mitigate his damages by establishing: (1) that there were suitable positions available which Dr. Kielich could have obtained, and (2) that Dr. Kielich failed to use reasonable diligence in seeking them out. See Jackson v. Shell Oil Co., 702 F.2d 197, 202 (9th Cir. 1983). Defendant did not satisfy its burden of demonstrating that Dr. Kielich failed to adequately mitigate his damages. To the contrary, the Court finds that Dr. Kielich made every reasonable effort to mitigate damages. In particular, the Court does not find it unreasonable for Dr. Kielich to have accepted a part-time job as a photography clerk after having been unsuccessful in his several-year search for work in dentistry.
Dr. Kielich is entitled to back wages in the amount he would have received in monetary and fringe benefits had he been hired, less what he received in wages from other employment. See 3 Eglit, Age Discrimination § 18.04 at 18-17 (1982). In addition, Dr. Kielich is entitled to prejudgment interest. See e.g., Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 818 F.2d 278, 282 (2d Cir. 1987). By statute, interest on judgments against the District of Columbia, its officers, or employees acting within the scope of employment cannot exceed a rate of 4 percent per annum. D.C.Code Ann. § 28-3302 (Supp. 1989). Therefore, defendant must pay Dr. Kielich prejudgment interest of 4 percent.
The EEOC also seeks liquidated damages. The ADEA expressly incorporates the remedial provisions of the Fair Labor Standards Act, 29 U.S. § 216(b). 29 U.S.C. § 626(b). Under these remedial provisions, a violating employer is liable for wages and benefits from the date when the successful applicant was hired until the date of trial, as well as "an additional equal amount as liquidated damages" if the violation was "willful". 29 U.S.C. §§ 216(b), 626(b). In Trans World Airlines v. Thurston, 469 U.S. 111, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985), the Supreme Court held that an ADEA violation is willful if "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." Id. at 128-29.
The Circuit courts have had considerable trouble in applying the Thurston standard for willfulness to individual discrimination cases.
For example, the Third Circuit has held that liquidated damages may only be awarded in cases where the employer has committed "outrageous" conduct. See Dreyer v. ARCO Chemical Co., 801 F.2d 651, 658 (3rd Cir. 1986), cert. denied, 480 U.S. 906, 107 S. Ct. 1348, 94 L. Ed. 2d 519 (1987). In contrast, the Eleventh Circuit has concluded that "there is no logical way to square a finding of intentional discrimination with a finding of good faith on the employer's part." Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1100 (11th Cir. 1987). Thus, in effect, the Eleventh Circuit has only required a minimal showing once intentional discrimination has been demonstrated. Id. The Fourth, Eighth, Sixth and Tenth Circuits, while requiring a greater standard for willfulness than the Eleventh Circuit, have refused to adopt the "outrageous" standard of the Third Circuit. See e.g., Gilliam v. Armtex, Inc., 820 F.2d. 1387, 1390-91 (4th Cir. 1987) (requiring consideration of employer's business justification); Uffelman v. Lone Star Steel Co., 863 F.2d 404, 409-10 (5th Cir.), cert. denied, 490 U.S. 1098, 109 S. Ct. 2448, 104 L. Ed. 2d 1003 (1989) (weighing credibility of witnesses regarding employer's good faith and reasonable actions); Schrand v. Federal Pacific Electric Co., 851 F.2d 152, 158 (6th Cir. 1988) (age must be "predominant factor in the employer's decision" in order to find willfulness); MacDissi v. Valmont Industries, 856 F.2d 1054, 1061 (8th Cir. 1988) (requiring evidence of a conscious intent to violate the law); Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1551 (10th Cir. 1988) (age must be "predominant factor in the employer's decision" in order to find willfulness).
The Court concludes that some evidence in excess of that necessary to establish a violation is needed to support a finding of willfulness. In applying this standard, the Court does not believe the plaintiff has met its burden and will not assess liquidated damages against the defendant.
Finally, the EEOC seeks injunctive relief. Injunctive relief is appropriate under section 7(b) of the ADEA, 29 U.S.C. § 626(b), which incorporates section 17 of the Fair Labor Standards Act, 29 U.S.C. § 217. See Hodgson v. First Federal Savings and Loan Ass'n, 455 F.2d 818, 825 (5th Cir. 1972). The Court believes that an injunction in this case is appropriate. It is clear from these facts that defendant must revise its conception of entry level Dental Officer appointments. The defendant must understand that the ADEA means what it says. Defendant cannot include in its hiring pool only those who are recent dental graduates for its entry level Dental Officer positions. The Court will also issue an Order requiring defendant to post an appropriate Notice to employees, in terms and scope approved by the EEOC and this Court, outlining the steps it plans to take in order to ensure future compliance with the ADEA.
These are my findings of fact and conclusions of law. Any finding of fact which constitutes a conclusion of law is hereby adopted as such, and any conclusion of law which constitutes a finding of fact is hereby adopted as such.
A separate Order shall accompany this Opinion.
DATE: January 30, 1990
ORDER -- January 31, 1990, Filed
Upon consideration of the evidence and testimony presented at trial, the arguments of counsel, and in accordance with the Court's opinion of this date, it is hereby
ORDERED that judgment be and hereby is entered for the plaintiff; and it is
FURTHER ORDERED that within thirty (30) days from the issuance of this order, defendant instate Dr. Kielich to an appropriate Dental Officer position with full seniority and other benefits; and it is
FURTHER ORDERED that defendant pay Dr. Kielich back wages and prejudgment interest at four percent (4%); and it is
FURTHER ORDERED that defendant, its officers, agents, servants, and employees are enjoined from violating the Age Discrimination in Employment Act of 1967, as amended ("ADEA"), by failing to appropriately consider and hire applicants for the position of Dental Officer because of their age; and it is
FURTHER ORDERED that defendant shall, within thirty (30) days, post an appropriate Notice to employees, in terms and scope approved by the EEOC and this Court, outlining the steps it plans to take in order to ensure future compliance with the ADEA.
DATE: January 30, 1990